FEDERALISM CAN

HEADS OF POWER..................................................................................................................................... 3

COLONIAL ORIGINS TO AUTONOMY..................................................................................................4

Royal Proclamation 1763...................................................................................................................................4Colonial Laws Validity Act 1965..........................................................................................................................4BNA Act (Constitution Act) 1867........................................................................................................................4Statue of Westminster 1931...............................................................................................................................4

CONSTITUTIONAL PROCEDURE............................................................................................................ 5

Downtown Eastside Workers United Against Violence, 2012.............................................................................5Cambie Surgeries, 2017......................................................................................................................................6Tsleil-Waututh Nation (TWN), 2017...................................................................................................................6

GENERAL APPROACH TO INTERPRETATION...................................................................................7

Edwards v Attorney General Canada, 1930 .......................................................................................................7Reference re Secession of Quebec, 1998............................................................................................................7

VALIDITY........................................................................................................................................................ 9

DOUBLE ASPECT DOCTRINE............................................................................................................................................9

PEACE, ORDER & GOOD GOVERANCE.............................................................................................10

NATIONAL CONCERNS DOCTRINE..................................................................................................................................10EMERGENCY BRANCH.................................................................................................................................................11POGG CASES...........................................................................................................................................................12

Russel v the Queen, 1882 – IV feds...................................................................................................................12Local Prohibition, 1896 – National Concern Doctrine – UV feds.......................................................................12Fort Frances, 1923 – Emergency Doctrine – IV feds..........................................................................................13Johannesson, 1952 – aeronautics matter of national concern – IV feds...........................................................13Anti-Inflation, 1976 – Emergency doctrine – IV feds.........................................................................................13Crown Zellerbach, 1988 – modern interpretation of NC doctrine – IV feds.......................................................13

CRIMINAL LAW.......................................................................................................................................... 14

FEDERAL CRIMINAL LAW.............................................................................................................................................14ARGUMENT FOR VALID FEDERAL CRIMINAL LAW...............................................................................................................15ARGUMENTS FOR INVALID FEDERAL CRIMINAL LAW...........................................................................................................16FEDERAL CRIMINAL LAW CASES:..................................................................................................................................17

RJR MacDonald v Canada, 1995 – intra vires fed govt.....................................................................................17R v Hydro Quebec, 1997 – intra vires fed govt..................................................................................................17Quebec v Canada, 2015 – intra vires fed govt..................................................................................................18Assisted Human Reproduction Act (AHRA), 2010 intra vires fed govt..........................................................18

PROVINCIAL CRIMINAL LAW........................................................................................................................................18ARGUMENTS FOR VALID PROVINCIAL LAW.......................................................................................................................19

8. Provincial laws are not criminal merely because they have a prohibition and a penalty........................19ARGUMENTS FOR INVALID PROVINCIAL LAW....................................................................................................................20PROVINCIAL CRIMINAL CASES......................................................................................................................................20

Dupond – intra vires prov govt.........................................................................................................................20

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Rio Hotel– intra vires prov govt........................................................................................................................21Chatterjee– intra vires prov govt......................................................................................................................21Goodwin – intra vires prov govt.......................................................................................................................21

REGULATION OF THE ECONOMY....................................................................................................... 22

BRANCH 1 – INTERPROVINCIAL TRADE AND COMMERCE....................................................................................................22BRANCH 2 – GENERAL REGULATION OF T&C..................................................................................................................23ANCILLARY DOCTRINE.................................................................................................................................................24FED & PROV ECON CASES..........................................................................................................................................25

Citizens Insurance, 1881...................................................................................................................................25Eastern Terminal Elevator, 1925 – UV federal govt..........................................................................................25Carnation, 1968 – IV prov govt.........................................................................................................................25Burns Food, 1975 – UV prov govt.....................................................................................................................26Labatt Brewing, 1980 – UV federal govt...........................................................................................................26General Motors, 1989 – IV federal govt...........................................................................................................26Reference re Securities, 2011 – UV fed govt.....................................................................................................27

INTERJURISDICTIONAL IMMUNITY & PARAMOUNTCY..............................................................28

APPLICABILITY: APPLYING INTERJURISDICTIONAL IMMUNITY...........................................................................................28OPERABILITY: APPLYING FEDERAL PARAMOUNTCY........................................................................................................32IJI & PARAMOUNTCY CASES.................................................................................................................................32

Winner v SMT Eastern, 1951............................................................................................................................32Tessier Ltee v Quebec, 2012.............................................................................................................................33Bell Canada v Quebec, 1988.............................................................................................................................33Ordon Estates v Grail, 1998..............................................................................................................................34Canada Western Bank v Alberta, 2007.............................................................................................................35Canada v PHS Community Services, 2011.........................................................................................................36Marine Services International v Ryan Estates, 2013.........................................................................................37Alberta v Moloney, 2015..................................................................................................................................37Rogers Communications v Chateauguay, 2016................................................................................................38

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HEADS OF POWER Federal (section 91) Provincial (section 92)

Introductory clause POGG1. Public debt and property2. Regulation of trade and commerce

a. Unemployment insurance3. Taxation4. Borrowing money on public credit5. The postal service6. The census and statistics 7. Militia, military and navy, defence8. Salaries of government employees9. Beacons, buoys, lighthouses, Sable Island10. Navigation and shipping11. Quarantine, marine hospitals12. Sea coast and inland fisheries13. Interprovincial or international ferries14. Currency and coinage15. Banking, incorporation of banks, paper money16. Savings banks17. Weights and measures18. Bills of exchange and promissory notes19. Interest20. Legal tender21. Bankruptcy and insolvency 22. Patents of invention and discovery23. Copyrights24. Indians and Indian reserves25. Naturalization and aliens26. Marriage and divorce 27. Criminal Law, except courts of criminal

jurisdic.28. Establishment/management of penitentiaries 29. Anything that does not fall to the provinces

1. Taxation within the province/for prov. purposes

2. Borrowing of money on provincial credit3. Establishment/payment of provincial officers4. Management of public lands and timber 5. Establishment/management of prisons6. Establishment maintenance of hospitals7. Municipal institutions8. Licenses raising revenue for prov/local/munic.9. Local works and undertakings10. Incorporation of companies with prov. objects11. Solemnization of marriage in the province12. Property and civil rights in the province13. Administration of justice in the province 14. Fines/penalties/imprisonment for provincial

laws15. Any matter of a local or private nature

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COLONIAL ORIGINS TO AUTONOMYRoyal Proclamation 1763

Created colonial governments Gave these govts the power to create laws & a judiciary branch Protections for Indig ppls

o In recent SCC case, the spirit of the Royal Proclamation was invoked o While the Royal Proclamation has no direct application in Canadian

jurisprudence today, its last section has been imported into Canadian law to protect indigenous peoples

Colonial Laws Validity Act 1965 Legislation passed in colonies had full effect in that colony only limitation was that it

could not be inconsistent with Imperial Laws o Imperial Laws = any laws made in the UK which extend to the colony o BUT the colonies could now legislative inconsistently with non-imperial English

law if they want Allowed colonies to amend their constitutions as long as they followed manner & form

(i.e. an amending formula)

BNA Act (Constitution Act) 1867 Imperial statue that united Canada into a federal system Problems with the BNA = vague statements in section 91 & 92 can make it hard to

interpret which govt has jurisdiction over which issues

Statue of Westminster 1931 Established complete legislative independence for Cad could legislate against

imperial statues Also gave Cad power to engage in extraterritorial legislation Only s 7(1) of BNA still applied because there was still no manner & form legislation NO Act passed in UK will apply to Cad, unless explicity asked

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CONSTITUTIONAL PROCEDUREConstitution Act 1867

Creation document - Canada came into being with its enactment Created the institutions of government: (1) executive (2) legislative (3) judicial

Constitution Act 1982 Deals with the relationship between the government and citizens The Charter is the last component Added amendment procedures Canada did not become an independent nation until 1982

Types of constitutional review (1) Ordinary Litigation

a. Lis Inter partesi. Between two parties ii. Defendant already breached the statue they are challenging & is

challenging its validity iii. Two ways for something to be unconstitutional – (1) not complaint with

division of power (2) not compliant with the charter b. Declaratory actions

i. Someone wants to challenge a statute because they believe it is unconstitutional

ii. Court will decide if they can be granted standing (ex. Downtown Eastside Sex Workers)

iii. No P or D (2) References

a. Only the govt (prov or federal) is allowed to ask questions of the courts – NOT LITIGATION

b. Fed govt refers questions directly to the SCC c. Provinces can refer to either prov SC or CA d. Justification = when the SCC sets out reasons for a decision, legal community

takes this very seriously

Downtown Eastside Workers United Against Violence, 2012 Facts: Downtown Eastside Workers want to be given standing so they can challenge provisions in the Criminal Code to do with sex work. BCCA granted them standing, Cad AG appealed to the SCCRatio: The SCC modified the test for granting standing – until this case, 3 criteria had been treated as a checklist. #1 one is still mandatory, but #2&3 can be applied more flexibly Goal of test = strike a balance bw access to the courts & preserving court resources

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Does the case raise a serious justiciable issue Ensures the courts stays within its constitutional jurisdiction & screens out the “busybody"

Does the party brining the action have a real stake in the issue Is the proposed suit a reasonable and effective means to bring the case to

court Often expressed as a strict factor, but in practice this is not the case Analysis

Law of standing answers the question who is entitled to bring forward a case Purpose of standing law/this test - to strike a balance b/w ensuring access to the

courts & preserving court resources Principle of legality speaks to two issues - that no law should be immune from

challenge and that unconstitutional laws should be struck down o Public interest standings developed as a way to challenge the legality of state

action - the Constitution Act 1982 entrenched the fundamental right of the pubic to have the government be in accordance with the law & the use of discretion in granting standing is necessary to ensure legislation conforms to the constitution

Discretion – the question of standing is appropriate for judicial discretion, and the factors considered should be not be treated as technical requirements, but rather interpreted in a liberal and generous manner and seen as considerations to be weighed cumulatively

Cambie Surgeries, 2017Facts: Plaintiff wanted Brandeis brief admitted as evidence, AG not opposed to admission of brief but said that many of the documents had already been submitted. AGBC not opposed to some updates to Common Book of Documents (which they already submitted), but is opposed to the brief being submitted because there was already a ton of info added to the record.Issue:

1. Can contents of brandies briefs be considered legislative facts? 2. What evidence is admissible in constitutional challenges?

a. Rules for admitting evidence have been relaxed in constitutional cases & courts look at virtually any evidence that is adduced

b. Type of evidence that can be adducedi. Evidence about the kind of problem the statute was aimed at

ii. Evidence on the effect of the statute was iii. Evidence on govt motive

Evidentiary concepts:3. Brandeis brief

a. Accumulation of evidence meant to inform court – often includes reports from govts, international organizations (OCED) and other research bodies

b. Includes social and legislative factsc. Meant to illuminate relevant social and economic problems in addition to

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arguments of law and fact4. Legislative facts

a. Facts that relate to the statute being challengedb. Give context & insight into what the goal of the statue was

5. Adjudicative factsa. A fact that must be proven admissible evidence that concerns the parties (i.e.

who did what, when)6. Judicial notice

a. Dispenses with need for proof of fact, i.e., if judge can take notice of something, you don’t need to prove it with evidence

b. High risk don’t want judge to take judicial notice of a fact you don’t know they’re going to

7. The more facts approach the centre of controversy, the higher the standard of judicial notice should be

a. Courts should ask if a fact would be accepted by a reasonable person who have taken the trouble to inform themselves on the topic

Tsleil-Waututh Nation (TWN), 2017 Facts: TWN opposed AG motion for leave to intervene in Trans Mountain Expansion Project proceedings. Ratio: The foundational principles of the constitution give the AG a broader right to apply to intervene to advance the public interest

If the court were to apply rule 110 the way TWN is advocating, private parties would have more rights to apply to intervene than the attorney general - this is an absurd conclusion because it fails to recognize the special role of attorney generals

o The longstanding constitutional tradition is that the rights of the public are vested in the crown, and the attorney gen, as an officer of the crown, enforces those rights

There is not clear enough language in the legislature to displace this principle Intervener: a 3rd party allowed to make arguments to the court

Intervener rights are under the discretion of the courts Two classes of intervenes = AG & individuals (either organizations or natural persons) Tsarlip motion for leave to interven under rule 109 demonstrates interveners must be

able to bring a new perspective – in this case Tsartlip’s perspective was the same as other Indigenous groups represented

GENERAL APPROACH TO INTERPRETATION

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Living Tree Metaphor (Edwards v AG Cad) – “BNA planted a living tree capable of growth and expansion within its natural limits”

o This means the words in a statue can be interpreted to fit current times NOT bound by OG intent

o Cite whenever asking the court to make a broader or narrower interpretation of something

How does the Court interpret the Constitution Act?

o (1) Court looks at precedence

o (2) Employs the ordinary rules of statutory interpretation

o (3) Principles of federalism

o (4) Other unwritten principles (Reference re Secession Act)

o (5) Scholarly opinion (i.e. Peter Hogg)

How does the Court interpret the statute in question?

o Must characterize and classify into either a federal or provincial head of power (s 91 or 92)

o Determine objective purpose of the statute (Pith and Substance analysis)

o Sometimes looks at the motive of government in enacting the statute (i.e. colourability)

Edwards v Attorney General Canada, 1930 Group of women petitioned Alberta AG to refer to the SCC to decide if the GG could appoint women to the senate The only case where individuals succeeded in putting a reference to the Court

This case gives us the doctrine: “Constitution is a living tree” → CITE anytime you want the Court to depart and to modify their interpretation of the Constitution.

Analysis This approach is consistently adhered to in interpreting the Constitution, Charter, etc.

Canadian courts do not consider themselves bound to whatever the framers of 1867 or 1982 intended

It means that in Canada, you will never encounter the American doctrine of original intent - this is not possible b/c of this case

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o We don’t have a clue what the original intent was b/c there is no evidence of what happened during the discussion in 1867

Reference re Secession of Quebec, 1998 Following the close result in the 1995 referendum federal govt initiated a reference to the SCC to question the legal issues surrounding secession

Unwritten principles can be used to fill in gaps in constitutional text. 4 principles considered in this case (not exhaustive):

1. Federalism – power shared by 2 levels of government, giving autonomy to provinces makes democratic participation easier with a federal government that respects this diversity, allows provinces to pursue collective goals on a provincial and a federal level, e.g. in Quebec

2. Democracy – self-governance, will of people is supreme3. Constitutionalism and the rule of law – shield against arbitrary power, Constitution is

the supreme law of Canada 4. Respect for minorities

Unwritten principles operate in symbiosis – none are absolute or can trump the others. Act as a substantive limit on what the govt can do. Main takeaway: Use any of these principles to support arguments about the interpretation of the Constitution Acts

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VALIDITYX can attack the validity of the law on the basis of the division of powers between the provincial and federal governments as set out in the Constitution Act 1867. Sections 91, 92 grant exclusive powers to Parliament and Provincial legislatures. A law can be held constitutionally invalid if the pith and substance of that law comes within the class of subjects outside of its jurisdiction.

To determine if a statute/provision is valid look to the pith and substance analysis The goal = determine Parliament’s underlying purpose in enacting a particular piece of legislation(1) Determine the pith and substance or essential character, of the law (authority for pith and

substance analysis: Chatterjee Binnie J analyzes the pith & substance of ON Civil Remedies Act)

a. Determine the object and purpose of the law (looking at internal and external evidence, per Edwards

b. Consider the legal and actual effects of the law c. Consider if there is any colourability (what was the government’s motive?)

(2) Use P&S analysis to determine which head of power (ss. 91 or 92) the law fits intoa. If the law is in relation to a head of power within the jurisdiction of the enacting

legislature, the law is intra vires and validb. OK for that law to have some incidental effects on another head of power outside

the enacting legislature’s jurisdiction c. IF pith and substance is not related to head of power under jurisdiction of enacting

legislature, the law is ultra vires and invalid

Double Aspect DoctrineDefinition: a matter that has both provincial and federal aspects

Examples: Temperance/alcohol (Local Prohibition and Canada Temperance Federation) & Reference re Securities case (p. 24)

The party trying to uphold the law needs to argue that its “dominant feature” is INTRA VIRES their jurisdiction and that any effect on the other aspect of the matter is merely INCIDENTAL (Chatterjee)

Cooperative Federalism Comeau, SCC 2018 (Regulation of T&C): Says it describes situations where diff level of govt work together to leverage their unique constitutional powers in tandem to establish a regulatory regime that may be UV one of the govts on its own

Cooperative federalism IS NOT a cause of action It is the result of when there is a cooperation bw federal and provincial govts Ex. Ref re Securities Act — govt tried to take over the entire field of securities, failed

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because tried to take over too much. Fed govt went back to the drawing board and divided jurisdiction bw federal and prov govts. Prov govt dealt with day to day issues, federal govt had control of criminal and international aspect

PHS Community Services (IJI): Courts appear to want to avoid applying IJI to amorphous heads of power & would rather resolve the dispute another way (ie. provincial healthcare) ().

Hard to see any head of power not being broad and amorphousMcLachlin CJ in PHS Community Services: "in summary, the doctrine of IJI is narrow. Its premise of fixed watertight cores is in tension with the evolution of Canadian constitutional interpretation towards the more flexible concepts of double aspect cooperative federalism. To apply it here would disturb settled competencies and introduce uncertainties for new ones. Quite simply, the doctrine is neither necessary nor helpful in the resolution of the contest here between the federal government and the provincial government.”

Rogers Communication (paramountcy): Held that cooperative federalism cannot be used to distort the P&S because this could lead to exclusive powers granted to either provincial or federal govt being unduly limited

Quebec v Canada (Criminal law): Cooperative federalism is an interpretation aid & can't be used to supersede formal division of powers

Note: if Quebec had argued they owned the records instead of cooperative federalism it would have given the courts a legal basis to give them the records

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PEACE, ORDER & GOOD GOVERANCE POGG = the introductory clause to s. 91 that gives federal government residual power

over matters not covered by enumerated heads in ss. 91 and 92 Although not expressly stated, the it is a fundamental principle that the federal govt has

residual powers to legislate in areas that would normally be provincial matters when it pertains to issues of national significance (i.e. peace, order, and good governance) (Fort Frances)

Once it is decided that a matter is of national interest and importance, so as to fall within the peace, order and good govt clause, the provinces cease to have any legislative jurisdiction (Johannesson)

Evolution of POGGo Russell v the Queen = POGG is an umbrella section privy council did not find

a need to allocate the Temperance Act/regulation of liquor to a specific head of power in s.91 or s.92. NO LONGER GOOD LAW.

o Local Prohibition = narrowed scope of POGG to ensure that some powers left for provincial govt POGG is a residual clause for federal govt

S.92.16 is a residual clause for prov govts all matters that are local and private in nature are provincial

The court will only consider residual power arguments (for either feds or provs) after it is clear the issue cannot be assigned to a head of power (Local Prohibition)

2 distinct branches of POGG (Anti-Inflation dissent)o National concern brancho National emergency branch

Examples of POGG justified under federalism principle: marine pollution (Crown Zellerbach) indivisible – no practical federal-provincial split of waters prohibiting dumping, aeronautics (Johannesson), temperance (Local Prohibition, Canada Temperance Fed).

Double-aspect doctrine (Local Prohibition)– if there is still room for provinces to legislate, they can as long as there is no conflict

o Federal statute must aim at the federal aspect.

National Concerns Doctrine Established in Local Prohibition & set conditions for use:

o Issue must be of unquestionable importance to Canadao Cannot encroach on heads of power delegated to provinces under s.92

Once a matter is found to be of national concern, it is permanently under federal jurisdiction (Anti-inflation dissent)

Matter must be “such that it goes beyond local or provincial concern or interests and

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must from its inherent nature be the concern of the Dominion as a whole” (Canada Temperance Federation)

4 principles of national concern doctrine (Crown Zellerbach)o National Concerns is separate & distinct from the national emergency

doctrine because emergencies are temporary This is bc invoking legislation under the emergency branch MUST be

temporary National concern leg ~ needs to be temporary

o Applies to new matters that did not exist at confederation or old matters that outgrew provincial ability

o To qualify as a national concern, issue must have a singleness, distinctiveness, and indivisibility

o Provincial Inability Test: if the inability of one province to effectively deal with an issue could effect the other provinces than it could be is an issue of national concern

Note — this is not a strict test. If a province can’t deal with an issue on their own then it suggests it could be a national concern BUT NOT AUTOMATIC Would depend on the specifics of the case

Gist of the test: a traditionally provincial issue only becomes a national concern when it goes beyond the ability of the provincial legislatures to deal with because it involves a federal competence or that of another province

Emergency Branch Emergency Branch established in Fort Frances Pulp & Paper

o Emergency must be sufficiently great to require national regulation o The existence of an emergency (or not) is judicially reviewable

However, the governments declaration of an emergency (which allows them to invoke POGG) is NOT reviewable

o Emergency legislation can occur in peacetime Courts will give a lot deference to Parliament Parliament only needs a “rational basis”

to believe an emergency exists or is continuing (Fort Frances & Anti-Inflation)o The burden for demonstrating an emergency very low for federal govt & very high

for plaintiffs alleging an emergency does not exist (Anti-Inflation) Modern test found in Anti-Inflation dissent

o Manner & form requirements must be temporary o Is there a prima facie emergency (ex. war)?

If it is obvious, courts take judicial notice & stop here – feds have a lot of power when it comes to dealing with emergencies

If not, then keep going o Is there explicit emergency wording?

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Federal govt make it very clear they are acting on the basis of a perceived emergency – if the emergency can be proven, constitution is suspended until the emergency has passed

Inclusion of “emergency legislation” wording is not a guarantee, but absence is fatal.

o The purpose of the legislation should suggest a real or apprehended emergency

Look at preamble of legislation. Apprehended Emergency: Parliament may act to prevent an emergency as long as

clearly indicate legislation is tied to the emergency (Canada Temperance Act) In determining whether an emergency is ongoing, extrinsic and intrinsic evidence of

the emergency is both admissible and necessary, per Anti-Inflationo If obvious – no need for extrinsic evidence

If arguing on behalf of the feds, and the legislation is arguably a matter of national concern, ask (Anti-Inflation):

1. What is the subject matter of the legislation? a. If it is a statute involving subject matter which has already been allocated to

federal govt, try to fit it under that issue b. But, if it is a new subject matter:

i. Characterize the legislation by summing it up in terms of its subject matter

ii. Don’t go too broad because the Court will say it lacks specificity

POGG Cases

Russel v the Queen, 1882 – IV feds Dude in New Brunswick was convicted of unlawfully selling alcohol, contrary to the

provisions of the Canada Temperance Act o Canada temperance act = authorizes the inhabitants of each town/parish to to

regulate the sale of liquor & direct for whom, for what purposes, and under what conditions liquors may be sold

Privy Council looked at these heads of power and decided that it doesn’t fall within any of the heads that had been argued No. 9 do not believe the falls within no. 9 because the Act is about prohibiting

sales of alcohol while this provision is about raising the provincial or municipal revenue

o Even though the act was interfering with Fredricksson’s ability to give license to sell alcohol, it is still within the right of the federal govt to pass laws for the peace, order, and good govt of Canada

o This clause is for raising revenue, not regulating substance No. 13 - yes alcohol can be held as property, but passing a law restricting its sale

on the gourds that the free sale of alcohol is dangerous to public safety, does not

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fall within the preview of a law in relation to property o This is not property in its civil aspect, this is property in its public

safety/order aspect o If the privy council had had to allocate this issue to a head of power in s.91

it would have allocated to public safety and order (I.e. criminal law) No. 16 - declared object of fed parliament in passing this Act is that there should

be uniform legislation on the selling of alcohol in all the provinces to promote abstinence in Canada

Decided problem is geographically wide spread Privy council did not find a need to allocate this issue to a specific head of power —

instead just threw it under POGG. This is not a decision that will last for long

Local Prohibition, 1896 – National Concern Doctrine – UV feds1st cases to define POGG power & origins of national concern doctrine

There may be matters not outlined in s.91 that the federal govt can legislate because they concern the peace, order and good govt this means there are 2 residual power sections in the constitution = s.92.16 & POGG

Using POGG for issues outside of s.91 must be done with caution otherwise the power of the provinces would be determinately eroded

To attach any other construction of the general power conferred upon the federal govt in s.91 would not only be contrary to the intention of the BNA Act, but it would also determinately erode the autonomy of the provinces

o This is because if the federal govt could use “peace, order, and good governance” to enact laws in areas that are specifically in provincial jurisdiction under s.92

HOWEVER, for the federal govt can only do this under two conditions:o Must be of unquestionable Canadian importance o Cannot encroach on the subjects outlined in s.92 that are under provincial

jurisdiction Scope of POGG significantly rolled back from Russel v The Queen

National concern doctrine: court held that some issues may originate as provincial matters, but could become a matter of national concern

o We don’t have any cases that illustrate this proposition, but it is a continuing risk for provincial heads of power

Fort Frances, 1923 – Emergency Doctrine – IV fedsFacts

Fort Frances Pulp & Paper = producer of newspaper paper Manitoba Free Press = newspaper publisher During WW1 (1914-1919) under the War Measures Act, the Canadian govt set fixed

prices for newspaper paper Manitoba Free Press wants to recover sums from Fort Frances for paper delivered to

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them for prices higher than what was regulated by law at the time under the War Measures Act

Issue = no dispute that the federal govt had the jurisdiction to enact WMA under POGG, but did POGG continue after the war was over?

Is the duration of the emergency judicable/can the duration of emergency be challenge/litigated in a court of law? YES

It is possible to challenge the continuation of an emergency. HOWEVER the burden on the govt is very low to prove the emergency continues

Analysis The constitution depends on the principle that the federal govt can extend their

powers into areas that would normally be provincial under s.92 in emergency situations (like WW1)

There are some situations that pose a great enough emernecy/threat that only the federal govt has the power and ability to deal with them

o War is an example of when relying on the provincial legislature to all agree doesn’t make sense and it federal govt needs to step in for the safety of the country as a whole

The kind of power needed to deal with these incredibly big/grave situations that affect the entire country can only be found in the part of the constitution that establishes power in the state as a whole

How do we know when an emergency is over?o Sometimes super obvious, like a declaration of peace o If not obvious there must be very clear evidence to get the judiciary to declare

the emergency is over This puts a very heavy burden (closer to BARD than to BoP) on parties

to prove the emergency is over

Temperance Federation, 1946 – IV feds Re-litigation of the same Act in Russell v The Queen Allowed to do this bc amendments had been made to the Temperance Act Appeal dismissed bc court not prepared to find that Russell was decided incorrectly Takeaway: long passage of time after a decision will probably produce a similar result

Johannesson, 1952 – aeronautics matter of national concern – IV fedsFacts

Johannesson operated a charter airplane service in Manitoba and Saskatchewan He had the relevant licences from from the Air Transport Board of Canada For the purposes of his business, he acquired an area in West St. Paul In response to Johannesson acquiring this area, West St. Paul passed a bi-law that

prohibited airplanes in that area Ratio: once it is decided that a matter is of national interest and importance, so as to fall

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within POGG, the provinces cease to have any legislative jurisdiction Used the test in Canada Temperance Federation case

o Does the issue go beyond provincial concerns?o Is the issue inherently a matter that concerns the entire country?

If yes to the above questions, doesn’t matter that some aspects of the issue may touch matters specifically reserved for provincial legislature

Even though parts of the aeronautics touched on provincial jurisdiction of property (ex. where airports get built), it cannot be divorced from the broader issue of aeronautics as a whole

Anti-Inflation, 1976 – Emergency doctrine – IV feds Facts

Federal govt passed the Anti-Inflation Act (AIA)o AIA set wage, profit, and price controls for all of Canada

Gov General in Council referred it to the SC to find out if it was ultra vires and if it was binding for the Ontario public sector

In the preamble to the act, govt stated it’s purpose as “providing for the restraint of profit margins, prices, dividends and compensation in Canada” because current inflation levels were contrary to the interests of all Canadians and reducing inflation was a matter of serious national concern

Wages & contracts are normally within provincial powers — civil rights When putting forward this reference the federal govt argues it is either an issue of

national concern OR is an emergency measure Issues

Was the Anti-Inflation Act valid? YES under POGG If valid, was it binding on the Ontario public sector? NO

Ratio: If there is some kind of rational basis for believing there is an emergency requiring federal intervention, federal govt has the power under POGG to do that

All the federal govt has to do to use the emergency power is to say that they had a rational basis for believing there was an emergency— the govt does not have prove there was actually an emergency

Dissent most important: inflation is neither a national concern nor emergency. Also establishes that there are two branches under POGG

What it needs to be in national concern doctrine = new issue & singleness, distinct & indivisible

o Applied to this case: Not a new issue bc has been around since the 1800s Not distinct bc inflation is so pervasive that giving it to the fed govt

would render many prov powers void It can be broken down into a range of different subject matters,

many of which are prov powers (ex. contracts, wages, prices) What it needs to be in emergency doctrine = temporary (manner & form

requirement) & perceived emergency

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Dissent also argues that inflation is neither a national concern or emergency Edinger agrees with dissent!!

The problem with it being upheld as emergency legislation = the form of the statue Example: Federal govt allowed the provinces to implement the Anti-Inflation if

they want if it was truly an emergency the federal government would probably make it mandatory

Crown Zellerbach, 1988 – modern interpretation of NC doctrine – IV fedsAdopted dissent in Anti-Inflation Facts:

Generally speaking, the federal govt controls the sea The federal gov't enacted the Ocean Dumping Control Act that prohibits any dumping

(regardless of harmful or not) in the sea UNLESS you have a with permit o The sea is defined in ODCA the internal waters of Canada, other than inland

(i.e. fresh instead of salt) Zellerbach had permit, but were dumping in Beaver Cove, which their permit did not

allow for o Beaver cove = salt water inlet, which made it sea as defined in ODCA o Although what they were dumping was not harmful, they did not comply with

the terms of their permit Zellerbach is charged under this act and argues that the federal govt was ultra vires

the federal gov’t to make federal laws concerning provincial waters There is no specific head of gov't for this The AG argues that it falls within POGG for the prevention of marine pollution as a

matter of national concern and should be assigned to the federal government for jurisdiction.

Issue: does the Ocean Control Dumping Act extend to regulations of dumping in provincial marine waters?Court establishes the 4 principles of the national concern doctrine

NC separate and distinct from national emergency doctrine because emergencies are temporary

Applies to new matters that did not exist at confederation OR matters that were once local but have become national (ex. aeronautics)

To qualify as NC, must have a singlesness, distinctiveness, & indivisibility When deciding if an issue is distinct and indivisible, consider what the effect on extra-

provincial interests if a province failed to deal effectively with the intra-provincial aspects of the issue

o This is known Provincial Inability Test: if there is an ability on the part of one of the provinces that could have an effect on the other provinces than perhaps it is an issue of national concern

o National concerns are only the aspects of legislative problems which are beyond the ability of the provincial legislatures to deal with because they involve a federal competence or that of another province

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o Note — this is not a strict test. If province can’t deal with it on their own then it could be a national concern, but not automatically

Why marine pollution was put under POGG Used very practical reasons for putting this under POGG

o Clear from conventions UN reports that marine pollution by dumping is distinct from other types of marine pollution — used scientific matter to establish that marine pollution was a distinct and indivisible issue

o Also because it is very hard to know when you are at sea where provincial waters end and federal waters start — can’t easily mark where this line is

SCC agrees with federal govt b/c subject matter in the Ocean Control Act is focused on specifically marine pollution. Marine pollution is a sufficiently distinct and indivisible issue — not just the environment generally, but specifically focused on pollution of salt water which is generally controlled by federal govt

o You can divide the environment into many different issues, some of them controlled by provinces and some of them controlled by feds

It is difficult to determine the exact boundary between internal and external waters because water is not fixed

Conclusion: Marine pollution does not fit under a s.91 HoP, but does fit into POGG because it has predominately extra-provincial implications and is therefore a matter of national concern

CRIMINAL LAWFederal Heads of Power Provincial Heads of Power

S.91(27): gives criminal law power to Parliament – this extends to ANY statue dealing with criminal law, not just things in the criminal code

S.91(28): establishing and maintaining prisons

S.92(6): establishing and maintaining prisons

S.92(13): property & civil rights S.92(14): provinces have legislative

jurisdiction over admin of justice in the province

S.92(15): gives provinces power to punish via fine, penalty, or imprisonment – if something is valid provincial law, the prov govt can impose above 3 punishments

S.92(16): residual provincial power Essentially, the CONTENT of criminal law is federal & the ENFORCEMENT is provincial

2 steps for statutes that are not POGG 1. Pith and substance of the statute

1. Ask: what is the dominant characteristic of the legislation? Does that characteristic fall under criminal or provincial law?

2. Which box does this statute belong in

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Federal Criminal LawConstitutional source = s.91(27). More reliable than POGG

Valid federal crim law MUST have proper form: prohibition + penalty + be for a public purpose (Margarine Reference)

This is the test for determining if a law will be valid under the crim law power HOWEVER, form requirement for valid criminal law ~ strict (RJR Mac) Prohibition element not required to be absolute regulatory statues can still meet the

3 P’s of the margarine test o Rule of thumb for distinguishing between regulatory and prohibitory statutes is

that prohibitory statutes ban an activity completely; regulatory statutes leave the substance in being and regulates how it is dealt with

The public purposes can be expanded, the prohibition is flexible (can be more regulatory), but it is ALMOST ALWAYS necessary to have a penalty

Argument for valid federal criminal law(1) Criminal law power can support a regulatory scheme if the underlying purpose is a

valid criminal purpose (RJR Mac, Hydro Quebec, AHRA) (2) If arguing for new public purpose: criminal law is ~ fixed or frozen in time (RJR

MacDonald) a. The number of criminal public purposes is not finite, identifying new ones is

possibleb. The govt can legislate in the widest sense b/c circumstances change and

criminal law can be expanded to protect new public purposes c. LaForest: “criminal law must be able to keep pace with and protect our

emerging values”(3) Valid criminal public purpose = protect public from an evil

a. Economic, social & political interests = Margarine Reference & AHRA b. Health = RJR Mac & AHRA

i. Ex. can target the evil indirectly by prohibiting ancillary activities of advertising tobacco (RJR Mac)

c. Security = AHRAd. Public peace and order = Margarine Referencee. Protection of environment = Hydro Quebec

(4) There is currently uncertainty about the degree of harm required for the criminal law power to apply (Assisted Human Reproduction Act)

a. EITHER: the government must simply have a rational belief that there is a risk of harm, per McLachlin

b. OR: the government requires “a real evil and a reasonable apprehension of harm”, or a substantial risk of harm, per Lebel and Deschamps JJ

i. This test is higher than McLachlin “rational belief”.

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(5) If arguing for a statue that has iffy form, look for strong public purpose courts give leeway if there is a strong public purpose, or the nature of the problem is complex

a. RJR Mac: Strong public purpose of protecting Canadians from harmful substances overrides lack of absolute prohibition target evil indirectly by criminalizing ancillary activity. Not practical to ban tobacco consumption directly

b. Hydro Quebec: Strong public purpose of protecting the environment overrides regulatory nature of statue (this would usually invalidate it as criminal law)

c. Assisted Human Reproduction Act: Complexity of problem requires a nuanced scheme consisting of a mixture of absolute prohibitions, selective prohibitions based on regulations, and supporting administrative prohibitions

(6) If an act is created under the criminal law head of power, the act removing information under said act is also criminal (Quebec v Canada)

Arguments for invalid federal criminal law(1) Regulation, not prohibition: manner & form requirement established in RJR Mac

means that federal legislation may be struck down if it is more regulatory than prohibitory

a. However, this one is iffy because RJR Mac & Hydro Quebec demonstrate the SCC is willing to hold regulatory provisions as valid criminal law

b. Hydro Quebec dissent (which Edinger agrees with): i. Look to substance of the legislation to determine if its prohibitory or

regulatoryii. Nothing in the provision “looks like” criminal law

Did not prohibit toxic substances, merely sought to regulate them

Broad, sweeping Ministerial discretion and exemption for provinces with similar legislation is very unusual for criminal law

iii. Environment is a matter of shared jurisdiction Must consider the effect on the other level of government

(2) Finding regulatory provisions intra vires feds would effectively oust provincial power over health bc of paramountcy principle (AHRA Deschamps)

(3) Pith and substance of crim law should be applied as narrowly as possible to uphold prov powers (AHRA Deschamps)

(4) Being new issue ~ automatically justify its public purpose (AHRA Deschamps)(5) Argue narrow application of AHRA: need “real evil” rather than just a rational belief

there is a risk of harm this should be the minimum threshold because otherwise criminal law would have no limits (AHRA Deschamps)

(6) Argue it is colorable (RJR MacDonald & Hydro-Quebec)a. Colourability occurs when the enacting govt has a bad motive (i.e is trying to

do something it ought not to by disguising its true motive with proper form)b. Look at what is the govt ACTUALLY aiming at c. If effects of the legislation directly encroach on some other subject matter

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likely reflect some alternative or ulterior purpose (7) Argue federal power cannot be limitless would make federalism hollow and make

criminal law power have no limits (AHRA Deschamps)a. Must address a real & objective evil (AHRA Deschamps)b. Just because it is a new issue, ~ automatically justified (AHRA Deschamps)c. Separation of powers (an unwritten principle!!) would be jeopardized

(8) Argue it is not a valid federal criminal purposes a. Protecting local dairy industry (any local industry) (Margarine Reference)b. Temporary ban on all public gatherings for 30 days even though strong

element of public peace and order (Dupond dissent) c. Licensing schemes that complement criminal law e.g. punish license-holder

rather than nude performer (Rio Hotel dissent)d. Suppression of criminality in general rather than specified crimes/criminals.

Compensate victims and remedy societal effects of criminality (Chatterjee dissent)

Federal Criminal Law Cases: (federal attempts to legislate under criminal head of power)

RJR MacDonald v Canada, 1995 – intra vires fed govt Facts: Feds banned tobacco advertising in the Tobacco Products Control Act which required health warning labels for cigarette packages (important to note that the Act did not prohibit the sale of tobacco). RJR sought declaration that the feds were UV Conclusion: Unanimous decision – valid criminal law Ratio: 1.criminal law is not fixed or frozen in time

Circumstances change and criminal law can be expanded to protect new public purpose

Protection of health = valid public purpose for criminal law 2. Do not need absolute prohibition to be valid criminal legislation regulatory statues can still meet the 3 requirements in the Margarine Test

In this case the problem was the legislation allowed for massive exemptions it not outright prohibition, which made the statue look more regulatory than criminal

This means prohibition requirement can be modified Analysis:

The govt can legislate in the widest sense b/c circumstances change govt must be able to expand criminal law to protect new public purposes

The only limitation on 91(27) = colourability Tobacco Products Control Act was pretty regulatory in nature (not a simple prohibition

+ penalty + public purpose) SCC willing to accept a flexible prohibition form

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R v Hydro Quebec, 1997 – intra vires fed govtExpands RJRFacts:

Environmental Protection Act allows Minister to make interim orders that regulate toxic substances

Hydro-Quebec breached an interim order that restricted emission of PCBs Hydro-Quebec argued the EPA UV federal govt SCC agreed that environmental protection new public purpose. BUT court disagrees

on whether the form of the legislation is criminal Dissent – UV federal government, simply containing a prohibition plus a penalty does not necessarily make it criminal in nature. Must have public purpose

Provisions are regulatory Subject matter of legislation determines if regulatory or prohibition

o Prohibition assumes absence of a subject matter o Regulation assumes at least part continuation of a subject matter

Nothing in the provision “looks like” criminal law did not prohibit toxic substances, merely sought to regulate them broad, sweeping Ministerial discretion and exemption for provinces with similar legislation is very unusual for criminal law

Environment is a matter of shared jurisdiction Must consider the effect on the other level of government

Prohibition assumes the absence of a subject matter, while regulation assumes the continuation of a subject matter

Majority – IV federal government Provision must be looked @ in the context of the whole statute if the provision

promotes the purpose of the statute and the statute is valid, so is the provision Environment is too divisible for national concern POGG majority prefers crim Hop

to POGG, Criminal law must be specific and therefore still allows provinces to legislate in

relation to the same matter (double aspect) Criminalizing some aspects of pollution does not prevent provinces from regulating

and controlling pollutionBy holding a provision that was more regulatory than in RJR, Hydro Quebec expanded the form of statues that would be considered valid criminal law expanded

Quebec v Canada, 2015 – intra vires fed govt Facts:

Example of when a repeal was challenged Liberal govt had created long gun registry. New conservative govt was repealing &

destroying all data Quebec was going to enact their own registry & wanted info from federal govt Quebec decides to challenge the validity of s. 29, which gives the feds the ability to

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destroy data Quebec argued that repeal dealt with property and civil rights not criminal law

Ratio #1: If you have a statute that repeals criminal legislation, look at OG statue NOT repealing statue. If OG statue is valid criminal legislation then the repealing legislation is also valid criminal lawRatio #2: Since the creation of data was intra vires, Parliament has power to destroy data

Cooperative federalism is an interpretation aid & can't be used to supersede formal division of powers

Reasons Quebec argued that they have a right because of “expectation” of continuing access

regardless of changes in federal legislation —> SCC held that Parliament is not bound by expectations of the provinces

NOTE: If Quebec had argued they owned the records instead of cooperative federalism it would have given the courts a legal basis to give them the records

Assisted Human Reproduction Act (AHRA), 2010 intra vires fed govt Odd case bc SCC splits: 4-4-1. Set threshold for criminal lawFacts:

AHRA regulates aspects of in vitro fertilization Only a few provisions were absolute prohibitions, so why did SCC rely solely on federal

criminal power to justify it? The rest of the statute creates an admin body to deal with statute that is deffs not

criminal Edinger thinks they could have used POGG

McLachlin decision: some provisions are valid criminal law; some are ancillary. No minimum threshold for federal govt to use crim HoP = NO minimum risk/harm,

just a reasonable apprehension of harm (broad scope) Concedes that part is regulatory, but that Parliament can create regulatory schemes

under s91(27) if the underlying purpose is valid criminal purpose (affirms RJR Mac & Hydro Quebec)

o Purpose id by McLachlin = morality You don’t need all Canadians to agree on what is moral, but the govt can

legislate on it Accepts health, security, upholding morality as valid public purpose. Ancillary doctrine = looks at relationship between challenged provision and the entire

statue. Asks if a provision is ancillary to the entire statue LeBel & Deschamps: Act deals with health and hospitals provincial invalid criminal law.

Threshold for federal govt to use crim HoP = an objective (real) evil with a substantive component of harm

o Must have this minimum threshold of harm before it can be criminal, otherwise criminal law would have no limits

Finding regulatory provisions intra vires feds would effectively oust provincial power over health bc of paramountcy principle

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Pith and substance of crim law should be applied as narrowly as possible to ensure prov powers are protected from encroaching federal govt

Just because something is new (tech, procedure ect), doesn’t justify its public purposeTAKEAWAY = no new SCC cases on what the min threshold for criminal law so it remains undecided

If you are attacking federal crim law – argue the min threshold has not been met If you are defending federal crim law – argue there is no min threshold

Provincial Criminal LawConstitutional source = 92(14)-(16). Provincial Jurisdiction: Prevention // Regulatory // Licensing // Private Property

Arguments for valid provincial law1. Complementary NOT supplementary to federal criminal law (Dupond)

a. Edinger has no idea what the difference bw complimenting & supplementing, but very good language to use

b. I think this means it can’t ADD to the criminal code, but it can follow/compliment the CC

2. Emphasize local nature 92(16), e.g. rioting in Montreal, (Dupond, Chatterjee)3. Avoid draconian penalties (Rio Hotel) – if there is draconian penality call it an

administrative penalty a. Provinces may enact civil consequences for criminal acts provided they do so

for a provincial purpose and in relation to a provincial head of power, per Chatterjee.

4. Emphasize the property aspects (houses, vehicles) (Chatterjee)5. Emphasize preventive NOT punitive – suppression of conditions likely to produce

crime = within provincial power (Dupond)a. Note: preventive power is not exclusive to provinces, shared with federal govt b. To be preventive must be temporary & local c. Presentation is important here (Dupond)

6. Enacted pursuant to a regulatory scheme – legislation is more likely to be upheld when prov statues are in the form of a regulatory scheme that deals with one of the provincial heads of powers (Rio Hotel)

a. This is because regulations look civil rather than criminal b. Licensing is a standard technique provinces use to regulate business

i. V useful because licensing raises revenues – s.92(9)c. Criminal law punishes the person involved with the activity, but licensing

punishes businesses d. Offences in regulatory program must be reasonably necessary for its purposee. In Rio Hotel, New Brunswick govt worked around inability to prohibit obscene

dancers by attaching conditions to liquor licences the businesses that

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profited off this type of entertainment relied on having liquor licences to be successful

7. Key is that the legislation does not merely duplicate criminal code provisions (Dupond & Chatterjee)

a. A province is unlikely to be successful if they only target a behavior that is already specifically covered in criminal code. INSTEAD, should cover a broader range of behaviours it is more likely to fall under a provincial head of power

8. Provincial laws are not criminal merely because they have a prohibition and a penalty. s.92(15): allows provinces to establish prohibition with penalties under provincial regulatory or licensing schemes which are valid under some other s.92 head of power (Rio Hotel).

a. Offences must be (a) reasonably necessary for purpose of the program (b) an important and integral part of the scheme.

b. The longer the penalty and the closer the terminology comes to describing conduct traditionally criminal, the more doubtful the validity of the provincial enactment

c. Duplication of Criminal Code language is fatal, but can relate and use CC as reference

9. If necessary, concede the legislation involves morality, but argue that morality concern is periphery to the legislation, not the main purpose (no specific case on this)

a. Morality can be the primary aspect of 91.27, but not for provincial legislation 10. Focus on provincial intent for legislation: if the purpose is deterrence, compensating

victims, ect, NO punitive more likely the act will be held to be intra vires11. If prov leg does not directly interfere with the criminal code or undercut criminal

procedure, generally intra vires

Arguments for invalid provincial law1. Argue supplementary as opposed to complementary (Dupond dissent) 2. Argue it is prohibitive (Margarine) 3. Argue it is punitive (rather than preventive) (Dupond)4. Argue the focus is national5. Plain interpretation fits criminal form (Dupond dissent).

a. Obscenity, morality, indecency (strictly federal issues) (Rio).

Provincial Criminal Cases(i.e.prov attempts to legislate under criminal head of power)

Dupond – intra vires prov govt Facts: Dupond attacked the validity of Montreal city-by laws that fined and imprisoned public

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gatherings, assemblies, or anything that endangered “tranquility, safety, peace, or public order in public places, parks”Majority: suppression of conditions likely to produce crime = prov jurisdiction

Argues that the bylaw was preventative NOT punitive, therefore NOT criminal law What makes it preventive? The FORM!

o Temporary nature of provision o Only deals with local issues o Majority argues that the above two make it regulatory

Enacting preventive laws is not solely a provincial power, but the provinces do have legislative jurisdiction preventive power is shared bw federal and prov govts

Edinger counter argument to majority = the whole point of ensuring that criminal law is known to citizens is to deter crime.

Dissent: to be IV prov govts, prohibitions must be within a valid scheme of regulation It was justified under peace, order and security this sounds like criminal legislation Argues it is like a mini crim code prov legislation not allowed to be supplementary,

only complimentary

Rio Hotel– intra vires prov govt Facts:

NB enacted Liquor Control Act that created a licensing system for businesses that serve alcohol.

o Two types of license available: (1) liquor (2) entertainment There had been an attempt by the NB govt to regulate entertainment before this, but

was struck down because NB govt basically copied the language of the criminal code (that is obiv UV provincial govts)

Ratio: legislation more likely to be upheld when in licencing regulatory scheme because this would make the statue fall under s.92(9) – raising revenue

Provinces should use regulations and conditions for licensing instead of prohibitions because this looks more civil instead of criminal because:

Criminal law punishes person involved with activity (ie. entertainer), whereas licensing scheme punishes by removing licenses from owner for violation of scheme (i.e. punishes the business)

o The fact that there is no penalty attached to the entertainer is important because it makes it look less like criminal law

Licencing regulates business by: raising revenues & regulating local businesses (both within prov jurisdiction)

o Licensing raises revenue bc govt can charge for liscences o Licencing regulates businesses because it allows the govt to cancel licences if

business do not comply with conditions set by govt businesses are reliant on the profits from the activity that is being regulated

NB govt able to work around by punishing business rather than entertainer Offences in regulatory program must be reasonably necessary for its purpose

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The longer the penalty & closer the terminology comes to describing conduct traditionally criminal, the more doubtful the less likely it will be held IV of prov govts

Licensing relates to local operations: local business being regulated, which fall within prov. juris.

o Entertainment is a marketing tool for the alcohol sales which are licensed under prov valid licensing scheme

Chatterjee– intra vires prov govt Facts:

Chatergee was driving outside of where his bail allowed him when he was stopped by police & charged with a traffic offence.

Money ($29,000) and other items were seized pursuant to Civil Remedies Act. HOWEVER, never charged with offence re money, items, drugs Chattergee challenged Civil Remedies Act

Ratio: Both provinces & federal gov can legislate to prevent if there is an overlap b/w prevention and fed crim law, then look to dominant purpose of leg to resolve (i.e. does it compliment or supplement) Why:

SCC upheld CRA because it deals with property – legislation was drafted in terms of property and there is NO question that property is a prov power

o The focus was “in rem” (against the property) not “in personam” (against the person)

Doesn’t single out offences only concerned with the effects of crime (broad purpose less likely to be characterized as criminal)

In the criminal code, there are forfeiture provisions, however they require a conviction 1st

o The accused actually has to be charged & convicted o Because Chatterjee wasn’t charged, he couldn’t be convicted there was no

conflict with the code provisions and it didn’t step into federal jurisdiction this makes it complimentary instead of supplementary, so allowed

No general ban against provinces enacting civil consequences to criminal acts that are related to a provincial HoP (in this case it was property)

o This means if you draft legislation in terms of property right (or other prov HoP issues) the chances are higher that it will be held as valid prov law

Note: Edinger ~ likes this decision because you can effectively be punished (by losing property) without ever being charged with an offence AND necessarily being denied the protection of criminal procedure

Goodwin – intra vires prov govtSimilar to Chaterjee bc argument was that it was criminal law dressed up to look like valid prov law

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Facts: Goodwin received a driving prohibition under new prov statue (Automatic Roadside

Prohibition). Goodwin challenged statue as a colourable attempt to dress criminal law up as valid

prov law. Province argues that the purpose was to prevent death and injury on public roads —

question is if they legislated correctly to obtain this purpose o Argues that the punitive measure if for deterrence

AG of Canada intervened and argued in favour of the province — this played a big role in the SCC deciding in favour of the govt

Issue: Should it be considered as federal criminal leg because it has a prohibition + penalty + public purpose? Or is it a provincial issue under Motor Vehicles Act?Ratio #1: substance NOT form of statue defines its true character

P&S went to regulation of driving (s.92.13) not criminal law “prevent death and injury on public roads by removing drunk drivers”

The purpose is deterrence, not just punitive deterrence is within provincial jurisdiction

Imposition of severe financial penalties and loss of important privileges do not necessarily make legislation punitive

o Outcome of severe penalties = a deterrent against unsafe driving, connects to overall goal of Act, which is to make highways safer

o Consequences are related to driving regulation This case is another example of when the SCC allowed provincial legislation to have more leeway that is consistent with the modern approach to federalism (i.e. cooperative federalism)

overlapping powers are inevitable!!

REGULATION OF THE ECONOMY Regulation of the economy (RoE) touches on both federal and provincial powers

double aspect matter T&C had not been a strong head of power for the federal govt

o Problem = very hard to draw the line between local matters and national matters The economy is not divisible it is an aggregate of factors subject to a

number of influences Federal heads of power

o 91(2)– Regulation of Trade and Commerce has 2 branches: International & interprovincial Trade (trade crossing borders) (Citizens’

Insurance)

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General Regulation of Trade (trade affecting the whole dominion) (General Motors)

o Section 91(2) does not include the power to regulate the contracts of a particular business or trade in a single province (Citizens Insurance)

Provincial Heads of Power o 92(13) – Property and Civil Rights in the Provinceo 92(16) – Matters of a Merely Local or Private Nature in the Province

Branch 1 – Interprovincial Trade and Commerce Look at movement of goods and where the legislation is aimed at if legislation that

is aimed at local issue, more likely to be held IV provincial govt (Carnation & Burns) Federal govt cannot reach back to regulate production in provinces, even if 100% of

the product is exported (Eastern Terminal)o This would give federal govt too broad of a scope

Modern test: provincial or federal legislation can infringe upon the other’s jurisdiction as long as the infringement is necessarily incidental to valid provincial or federal purpose (Carnation)

o Effect of Quebec regulation on prices outside of QB merely incidental, so not UV the QB govt

Branch 2 – General Regulation of T&C GM established 5-part test for valid legislation under branch 2. The act or scheme

established by the Act requires the followingo Leg must be apart of a general regulatory scheme o Scheme must be monitored by continuing oversight of a regulatory agency o Legislation must be concerned with the trade (i.e. economy) as a whole rather

than specific industry o Legislation should be of a nature that the provinces jointly or separately would

be constitutionally incapable of enacting o The failure to include one or more provinces in a legislative scheme would

jeopardize the successful operation of the scheme in other parts of the country

o NOTE: THIS IS NOT A CHECKLIST – even if all 5 requirements are met, a statue may still be found invalid under general regulation of T&C

SCC established in Securities Reference that valid federal legislation must deal with issues that are

o Qualitatively distinct from issues under provincial jurisdiction o Of genuine national importance. National importance =

Must be something the provinces acting individually or in concert could not legislate (i.e. provincial inability test, Crown Zellerbach)

Geographic distribution is not enough, as per Local Prohibition Case o Ask yourself: Does the act viewed in its entirety address a matter of genuine

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national importance and scope going to a trade as a whole in a way that is distinct and different from provincial concerns?

Double Aspect Doctrine: applies to 91(2) Branch 2 because subject of valid federal legislation must be a distinct federal aspect which is “genuinely national in importance and scope” this means if something is a double aspet, feds probs cannot use branch 2

o If provinces have legislative power to cover the whole aspect of the matter (there is NO double aspect) and choose to cooperate, the Feds will likely not win

General notes: These bear resembles to criteria in Crown Zellerbach for POGG because national

concerns doctrine and general regulation of trade and commerce are often argued together in favour of upholding legislation

Not valid federal law under 91(2) if regulates contracts of a particular business or trade within a province (contracts = 92(13) civil matter) (Citizens Insurance)

Not valid federal law under 91(2) if regulates the local production of a good, e.g. by way of a legal recipe (Labatt Brewing) Production is almost always local

Ancillary Doctrine (General Motors)Applies to a single provision of a federal provincial statue (possible whole chunks of a statue, per McLachlin in RHRA)

Dixon’s approach to applying ancillary doctrine: 1. Determine P & S of provision 2. Determine if provision intrudes on other levels of govt powers

a. If provision is ~ within the HoP of enacting jurisdiction invalid, need to apply the ancillary doctrine

3. Determine if the entire statue is valid or invalid in relation to the head of power a. If statue itself is invalid, ancillary doctrine cannot help. Entire thing is

unconstitutional b. If the statue itself is valid, apply ancillary doctrine to specified provision

4. Determine if provision is sufficiently integrated within the scheme of the statue as a whole

a. Can the provision be constitutionally justified by reason of its connection to the valid legislation

i. How integrated is the provision into the scheme ii. How important is it for efficacy

b. The strength of the test depends on level of encroachment on other powers i. Minor encroachment = rational connection test/functional connection

ii. Major encroachment = truly necessary or necessarily incidental (i..e statue would not function without that provision)

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Even if the challenged provision is ultra vires, ancillary doctrine can save it. Available for all heads of powers s.91/s.92

Used to uphold an otherwise invalid provision because it is sufficiently integral to the valid statute

The greater the intrusion into provincial leg, the closer the connection must be to the statue as a whole major intrusion requires truly necessary/necessarily incidental vs minor intrusion only requires a rational connection

Truly necessary = entire statue could not function without that provision Usually available for a SINGLE provision but recall AHRA

Ancillary can add additional legislative jurisdiction for both levels of government. Can enact a provision from time-to-time, which standing alone would be ultra vires but if properly integrated into a statute would be upheld

Fed & Prov Econ Cases

Citizens Insurance, 1881 LEADING CASE. Privy Council defined scope of 91(2) & established two branches Facts:

Parsons insured his store against fire store burns down makes insurance claim Insurer said he doesn’t qualify bc breached a condition in Ontario statute Parsons challenged validity of Ontario statute

Ratio: SCC split T&C into two branches Branch 1 = international and interprovincial trade Branch 2 = general regulation of trade

What can federal power of T&C never include? The contracts of a particular type of business or trade in a single province (such as

insurance of fire) Therefore, if the statute regulates contracts of particular business/trade, this is not a

matter falling within T&C Note: Branch one has been used more frequently by federal govt than branch 2

Eastern Terminal Elevator, 1925 – UV federal govt Feds cannot regulate production within provinces or regulate directly Facts:

Federal statute (Canada Grain Act) regulates the grain trade CGA imposed a tax on the terminal elevators to finance the Canada Grain Act. Eastern Terminal Elevator Co argue the provision in the statute is ultra vires

Parliament Feds though they could regulate bc grain is largely externally traded, therefore they

can have control of whole process o Problemo is that the elevators themselves are an entirely local business (which

puts them under prov jurisidiction)

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Provision declared UV fed because: Although the vast majority (70-80%) of grain is exported (this is international trade), it

doesn’t mean the federal govt can regulate the local aspects of it Feds will have problem when it wants to regulate whole process but only certain

aspect is interprovincial In trying to regulate the whole process, feds were reaching back into the early stages

of the flow and terminal

Court give feds BIG hing about how they could regulate production of goods that occurs entirely within a province

Use their declaratory power to declare a work to be a work for the general advantage of Canada (never actually had a case where this happens)

Declaratory power is incredibly powerful head bco it can declare any work a work for the general advantage of Cad, and therefore

obtain regulatory authority over it o declarations are not judicially reviewable o Anything that has a physical appearance can be the subject of declaration

The only reviewable part of a declaration are there works involved (i.e. tangible/physical things)

Carnation, 1968 – IV prov govt Classic PITH AND SUBSTANCE case

Edinger thinks this case and Burns are indistinguishable in terms of where the product comes from — both were local, but Burns was struck down and Carnation was not

So what is the difference? Lies in the flows of the goods and the reading by SCC of the legislative intention

Facts Prov statue creates a marketing board marketing board sets price of milk Carnation purchased milk from dairy farmers in Quebec, but it was selling milk outside

of Quebec Carnation had to pay a specific price to dairy farmers, which affected the price it sold

its milk for outside of province this means marketing board was affecting the price of milk outside of Quebec

Carnation challenges validity of marketing board’s price setting

Ratio: validity determined by P & S incidental effects on interprovincial trade OK as long as it is the not the aim

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The object and purpose of the marketing plan is to protect Quebec dairy farmers NOT increasing the price at interprovincial trade!

If the aim is to regulate trade in INTERprovincialmatters = then it is T&C, therefore UV province

The fact that it may have impact on interprovincial trade does not mean automatically 91(2)

o If impact is merely incidental on interprovincial trade law not UV provinces Inter = between, intra = within

Burns Food, 1975 – UV prov govt Facts:

Burns food was bypassing Hog regulations by purchasing directly from Sask producers. Hog Prodcuer’s Marketing Board changed regulations to prevent Burns from doing

this required hogs bought outside of Manitoba to be sold through Manitoba’s teletype action

Purpose of new regulations = prevent what Burns Foods was doing Ratio: regulation was aimed at the border no Bueno

This case suggests that provinces will likely have better luck regulating things that originated IN their province

AGAIN, LOOK AT AIM OF LEGISATLION This doesn’t mean that provinces can NEVER regulate products that cross boarders,

but must look at where the legislation is pointed is it within the province or at the border?

Labatt Brewing, 1980 – UV federal govt Facts:

Food & Drugs Act establishes legal recipes – the legal recipe for light beer was 1-2% alch.

Labatts “lite” beer was 4% alcohol. Labatt sought declaration that “light” would not be mistaken with “lite.” Labatt’s breweries were entirely local at this point ~ exporting across provinces or

internationally therefore it was the regulation a single industry in a province, which is under provincial jurisdiction

Ratio: T&C cannot be used to control local industries – even if that industry covers a substantial portion of Cad’s economic activity, fed govt cannot regulate something that is entirely local

Food & Drugs Act ultra vires fed govt all legal recipes removed Fails under branch 1 bc legal recipes by nature NOT concerned with the flow of

products through distribution channels instead concerned with production and local sale of specified products

Fail under branch 2 bc even if you had a legal recipe for every product manufactured in Canada, it wouldn’t be general trade and commerce because you’d be regulating

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single industries — not general industry overall

General Motors, 1989 – IV federal govt Facts: Section 31.1 in Competition Act (federal statute) gave a cause of action to City National Leasing because GM allegedly breached the Act & injured City National Leasing. GM challenges s 31.1

Ratio: Section 31.3 INTRA VIRES fed govt - it is necessarily incidental to the Act

This case is important for TWO REASONS: SCC unanimously decides for the first time that a federal statute is valid under

SECOND branch of T&C There is a full discussion of the ANCILLARY DOCTRINE - GM is by no means the first

case to do so but it provides a very coherent discussion of the doctrine

5 criteria for what can fall under general regulation of T&C Legislation must be part of a regulatory scheme Scheme must be monitored by continuing oversight of a regulatory agency

o Above 2 are pretty straightforward bc most govts do this anyway Legislation must be concerned with trade as a whole, and NOT a particular industry —

combines investigation act meets this criteria bc concerned with business ethics and not a specific industry

Legislation should be of such a nature that the provinces jointly or separately would be constitutionally incapable of enacting it (i.e. provincial inability)

Need national regulation or the regulatory scheme will fall through PLUS 6TH FACTOR FROM REFERENCE RE SECURITIES: matter must be of genuine

national importance in a way that is distinct and different from provincial concerns see case brief for definition of genuine national importance

ANCILLARY DOCTRINE after considering the validity of the statute as a whole, consider the relationship of the single challenged provision to the rest of the statute

Doctrine allows the court to uphold a provision as valid even if it appears prima facie invalid because of its necessary relationship to the statute

o In this case, s.31.1 did not look like general regulation of T&C Greater intrusion into provincial legislation, the tighter the relationship must be.

o Minimal intrusion, relationship merely functional Must have a valid statute to apply ancillary doctrine, but can be used by either

federal or prov govt Ancillary doctrine applied to this case:

o SCC decides that section 31.1 only causes a civil cause of action for breaches to the combines act s.31.1 give a cause of action only in very limited circumstances

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o This is not a massive intrusion into provincial legislation therefore relationship only needs to be functional

o SCC holds s.31.1 as valid bc necessarily incidental to the combines investigation act

Reference re Securities, 2011 – UV fed govt Applies GM test and adds a 6th factors: genuine national importance Facts:

Securities Act created a single scheme governing the trade of securities throughout Canada this completely took over securities regulations and left nothing for the provinces to do

Feds argue that securities was once local, but now it has evolved and become national argue that s.91(2) can evolve like POGG does

o SCC did not strike down this argument, but said there had be an evidentiary basis for the argument

Ratio: Adds a 6th factor to the General Motors test: Does the act viewed in its entirety address a matter of genuine national importance

in a way that is distinct and different from provincial concerns? SCC definition of genuine national importance: not enough that the matter be

replicated throughout the provinces, it must be something that provinces could not achieve must be that if the federal government did not legislate, there would be a “constitutional gap”

In this case, federal govt failed to prove that securities were qualitatively different than a matter regulated from the provinces

Double Aspect Doctrine Provinces have NOT lost jurisdiction because of GM Motors, just because general

regulation has context now, doesn’t mean that provinces are missing out. Double aspect matter still applies

Subject of valid federal legislation must be a distinct federal aspect “genuinely national in importance and scope”

Securities = double aspect matter If arguing subject matter has become national concern, must have evidence to prove Example: competition law → is valid because it deals with a matter of national

importance and scope; anti-competitive behaviour is a harm that spills beyond provincial boundaries and permeates the economy as a whole - not limited to particular trade or location

The problem with this case and the Securities Act is that it did not limit itself to federal aspects of securities statute as drafted is invalid because it tries to regulate everything that provinces currently do

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R v Comeau, SCC 2018 Facts

Comeau = resident of NB. Crosses border into QB & buys a lot of liquor. When crossing back into NB he is charged with the breach of s.134 the liquor control

acto S.134 = no person shall have or keep liquor not purchased from the

corporation This means you have to buy all your liquor from the province

o Each province has a liquor control act & it gives each province a monopoly on the sale of alcohol

Comeau argues that s.121 of the Constitution should be interpreted as a free trade agreement

o Interpretation of s.121 = "all articles of the growth, produce or manufacturing from one of the provinces will be admitted freely into the other provinces”

Comeau argues that s.121 renders s.134 invalid TJ accepted expert witness’ evidence that s.121 was intended to be a free trade

agreement & found Comeau not guilty

SCC decision: SCC declined to follow TJ decision because precedent is more important than history

o History in this case = what the drafters of the constitution intended SCC says its not ignoring the living tree approach, but holds that the evidence of

changing social norms MUST fundamentally shift the perimeters of the debate to persuade the court to ignore binding precedent

o SCC distinguished Bedord case, in which in the SCC departed from precedents that upheld the contested CC provisions bc social and economic circumstances had significantly and fundamentally changed

This means you can’t ignore precedent unless there is a significant/fundamental economic and social change

o Can still argue for modification or incremental change of precedent, but for it to be completely overturned requires fundamental changes in social & economic conditions

SCC upholds s.134b of the liquor control act as valid because: SCC distinguishes bw statues that are aimed at the border and those aimed at conduct

within the province, but has an incidental effect on the border o If the statue is aimed specifically at the border & imposes costs, that statue

will breach s.121 o If the statue has an effect on the border, but it is only a merely incidental

effect on inter-provincial on trade, then it is valid — incidental effect is permissible

Note: Edinger thinks s.134 is v similar to statue in burns food case, so has no idea why

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it was upheld when burns food was struck down

SCC on cooperative federalism — says it describes situations where diff level of govt work together to leverage their unique constitutional powers in tandem to establish a regulatory regime that may be UV one of the govts on its own

Cooperative federalism IS NOT a cause of action It is the result of when there is a cooperation bw federal and provincial govts Ex. Ref re Securities Act — govt tried to take over the entire field of securities, failed

because tried to take over too much. Fed govt went back to the drawing board and divided jurisdiction bw federal and prov govts. Prov govt dealt with day to day issues, federal govt had control of criminal and international aspect

INTERJURISDICTIONAL IMMUNITY & PARAMOUNTCY

John Deere Plow Co v Wharton (1915) Birth of IJI John Deere Plow = federally incorporated, wanted to carry out business in BC BC would not permit John Deer to register in BC. Since John Deer could not register in

BC, it could not do business in BC The whole point of federally incorporated companies = they are entitled to cary on

business ANYWHERE in Cad If provinces could restrict federally incorporated power = restriction of federal power

IJI = judicial creation, no statute to support it.

APPLICABILITY: Applying Interjurisdictional Immunity*apply if you have: PROVINCIAL LAW + FEDERAL ENTITY/FEDERAL HEAD OF POWER, or:

FEDERAL LAW + PROVINCIAL ENTITY/PROVINCIAL HEAD OF POWERIf IJI Applies: the impugned law is not invalid, it is simply inapplicable.

Must always ask the following questions: Is this a federal entity? If YES: What immunity does the federal entity have, if any

S.92(10) outlines lists the exceptions to local works & undertakings, which would be under provincial jurisdiction

Lines of Steam or other Ships, Railways, Canals, Telegraphs, and other undertakings that connect the provinces to each other OR provinces to

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other countries (pipelines would fall under this) Works that have been declared to be for the general advantage of Canada

[1] When you have a federal entity – provincial law must impair a vital and essential part of the federal entity, per Binnie and Lebel JJ in Canadian Western Bank.

Identify a federal entity (note: federally Incorporated companies are not automatically federal entities – depends on their actions)o Entity does not have to be physical thing – ex. Phone waves. Just has to spread

across country. Identify vital and essential elements of the operation of the entity Persuade Court that application of provincial statute will impair the essential part

of the federal entity. o Note: because Bell Canada set the standard as effect instead of impair, if a

statute affects the federal entity but no impairment yet, Edinger thinks there could be a persuasive argument that the court should redefine “impairs” or accept the “effects” standard. If the statute will impair the federal entity in the future, why wait till then to bring a case?

Examples of vital or essential parts of a federal entity: Beetz J in Bell Canada identified a federal undertaking’s labor relations and

working conditions (internal management of the federal entity) as “an essential part of the very management and operation of such undertakings” and therefore immune from provincial laws

Examples of non-vital or essential parts of federal entity: In Canada Western Bank, Binnie and Lebel JJ found that insurance sales were not

a vital or essential part of the federal banking undertaking (so provincial consumer protection regulations not inoperable)

Precedents in IJI Per Binnie and Lebel JJ in Canada Western Bank , IJI “is of limited application and should in general be reserved for situations already covered by precedent” and applied “with restraint”

S. 9210(a)(b)(c) – Winners created test for 92(10) qualification (SEE TEST BELOW) Federal transportation & communication undertakings (overlap with s. 92) –

airlines, bus lines, truck lines, telephone lines, shipping lines Management of federal institutions (post office, RCMP) Banks – Canadian Western Bank Provincially incorporated companies whose business is interprovincial in nature Maritime law in Ordon Estate Port authority Telecommunication that crosses borders Aerodromes, once they are registered (but SCC gave IJI to a federal head of power

(Aeronautics) not a federal entity) Pipelines

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Ferries that cross the Canadian/provincial borderNo Precedent for a provincially created entity claiming IJI

What is not a federal entity: private fishing boats per Marine Services Int

DISJUNCTIVE TEST – per Winner, privy council established that a work and undertaking should be read disjunctively. IJI can apply to EITHER a work OR and undertaking

A distinction is drawn between a work (which are stationary things such as roads, canals, bridges, buildings) and an undertaking (which is an arrangement/business)

In Winner the province still maintained authority over the work (i.e. the roads), but that authority does not entitle it to interfere with connecting undertakings. It it is the undertaking, not the roads, that is within the jurisdiction of Parliament.

Legislation that denies the use of federal undertakings to use a provincial work interferes with the prerogative of the federal government

The federal govt can gain the jurisdiction over a work/undertaking in 2 ways Direct jurisdiction – a work, undertaking, business within legislative authority of

federal govt Derivative federal jurisdiction – per Tessier, something that is usually provincial

can become federal because of its relationship with a federal entity. o Test: if local company (i.e. entirely within province) is necessarily incidental

and functionally related to a federal work/undertaking, then it could be a federal entity

o In Tessier, % employees who worked on stevedores was not high, employees fluctuated in the tasks they performed and % of income from stevedores was low. Almost suggests that derivative jurisdiction depends on %

SCC can decide if a company has derivative jurisdiction OR is an integrated whole If derivative jurisdiction = only part of the company is federal If integrated whole = entire company is federal If either is found, entity becomes federal

Warning: cannot tack on small federal aspect to an otherwise provincial company to make it a federal entity and escape provincial regulatory jurisdiction.

Court will evaluate the way the company operates and decided whether or not that is colourable.

OR [2] When you DO NOT HAVE AN ENTITY: the provincial law must impair the “unassailable core” of a federal (or provincial) head of power.

Identify a head of power in S.91 or S.92o Helpful if precedent because in Canadian Western Bank SCC stated that

application of IJI should be restricted to precedents

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o Example: Ordon Estate held that marine negligence law was at the core of s.91(10)

Identify core of that power – good luck! o Iacobucci and Major JJ in Ordon Estate stated that each federal HoP

“possesses a basic, minimum, and unassailable content, which the provinces are not permitted to regulate” directly or indirectly

Persuade the Court that application of legislation will impair the core of the head of power

o Impairment = higher threshold than affects. Impair infers seriously or significantly hinders federal/provincial power (Canadian Western Bank).

*Examples of unassailable core: Maritime negligence law found to be an unassailable core of 91(10) navigation

and shipping in Ordon Estate In Canada Western Bank, Binnie and Lebel JJ found that insurance sales were not

part of the unassailable core of federal banking head of power 91(15) (so provincial consumer protection regulations not inoperable)

PROVINCIAL IJI: The doctrine of IJI is also in theory reciprocal and could apply to provincial entities and provincial HoP per Binnie and Canadian Western Bank

Go with the traditional route first & identify a provincial entity – ex. hospital, local police force, school).

o Edinger thinks PHS Community Services could have been successful in their IJI claim if they were treated as a provincial entity rather than tying IJI argument to the provincial head of power.

o Problem if you go down this route = no precedent exists for a provincial entity claiming IJI.

If cannot find a provincial entity identify provincial head of power.o SCC cautions against broad use of IJI: better to try other basis for arguing your

case. o Acknowledge that there are no precedents for provincial head of power IJI but

still try.

Courts appear to want to avoid applying IJI to amorphous heads of power & would rather resolve the dispute another way (ie. provincial healthcare) (PHS Community Services).

Hard to see any head of power not being broad and amorphous McLachlin CJ in PHS Community Services: "in summary, the doctrine of IJI is

narrow. Its premise of fixed watertight cores is in tension with the evolution of Canadian constitutional interpretation towards the more flexible concepts of double aspect cooperative federalism. To apply it here would disturb settled competencies and introduce uncertainties for new ones. Quite simply, the doctrine is neither necessary nor helpful in the resolution of the contest here between the federal government and the provincial government.”

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OPERABILITY: Applying Federal Paramountcy*note: only occurs when there is both a valid federal and provincial law + CONFLICT

Paramountcy: depends on the existence of a conflict between a federal and provincial statute. Where there are conflicts, federal law always prevails.

Main question that must be answered by courts: what constitutes a conflict?

Steps:1. Identify the conflict for the court2. Describe conflict for the court3. Perused the court that it is one of the following types of conflict:

a. Operational conflict – explicit conflict, an individual or entity could not comply with both the federal and provincial statute (MacLachlin in Monloney)

b. Frustration of purpose – the determined purpose of one statute frustrates the purpose of the other statute.

i. often not as clear & harder to prove. Must determine the purpose of both federal and provincial statute, and then demonstrate how one frustrates the other

SCC stated in CWB that “paramountcy is better suited to contemporary Cad constitutionalism than IJI”

SCC also stated that you could argue in whatever order you like – this means you could argue for paramountcy (if applicable) before IJI

Fundamental Rule of Constitutional Interpretation: When a federal statute can be properly interpreted to not interfere with a provincial statute, such an interpretation is preferred to one where a conflict would arise (CWB)

IJI CASES

Winner v SMT Eastern, 1951Facts

Winner operated motor buses that went from Boston to New Brunswick Motor Carrier Board of New Brunswick has jurisdiction to grant licenses to bus

operations that wanted operate in NB (keep in mind provinces have complete jurisdiction over all provincial highways)

The Board issued a permit, subject to the condition that Winner would not pick up or drop off any passengers within the province

Winner contended that the Board did not have the authority to attach this condition to his permit

S.M.T. Eastern (a competing bus company) applied to the SC of NB for an injunction restraining Winner

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Issue: can NB restrict inter-state or international undertakings by its provisions in the Motor Carrier Act?

Ratio Provinces cannot prevent or restrict inter-provincial works OR undertakings — this is

federal jurisdiction If your company is functionally divisible (i.e. have to separate parts of the company),

then only the international part is under federal jurisdiction

Disjunctive test – see IJI box

Tessier Ltee v Quebec, 2012 Introduces concept of derivative jurisdiction Facts

Tessier is an equipment rental company that operates exlusively in Quebec Some operations involve stevedoring (stevedoring = how steamships are

loaded/unloaded) As per Stevedoring Reference SCC decided a firm engaged in stevedoring was federal

entity because of the integral relationship between stevedoring and steamships (91.10)

Tessier seeks a declaration that it is subject federal labor laws instead of Quebec’s labor laws because of their stevedoring activity

Issue: how should Tessier be identified? 1. Is it a federal entity? 2. If not, is it closely connected enough to navigation and shipping (91.10) to be pulled

into federal jurisdiction?

SCC conclusion Activity (in this case stevedoring) must be VITAL, INTEGRAL & ESSENTAIL to a federal undertaking for there to be derivative jurisdiction. Tessier did not have discrete unit of employees that exclusively worked on stevedoring & only a portion of their revenue was from stevedoring. Therefore, it was not vital, integral, or essential to steamships and could not claim federal jurisdiction — no derivative jurisdiction

Had Tessier had a discrete stevedoring unit, SCC may have found there was derivative jurisdiction

Bell Canada v Quebec, 1988Test for IJI changed to AFFECT (this will be reversed in CWB)Deals with the word to use when the court is describing the effect on the federal entity on

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the application of federal law John Deer = sterilization. Overtime this threshold was reduced to impairs. This case

reduced it to provincial legislation affecting a federal entity Sterilizes → impairs → affects Justification = how can a federal entity know what the impairment is until it happens?

This allows for an applicating of IJI before any impairment happens

Facts Bell reassigns of a pregnant worker Labour relations and working conditions fall within the exclusive legislative

jurisdiction of provinces – s.92(13) Bell did not want to have to comply with the provincial healthy and safety laws Bell claimed IJI against provincial health and safety regulations, arguing that

application of provincial law would impair them in a vital and essential way No question that Bell was a federal entity – this cases hinges on what can be classified

as essential and vital parts of a federal entity

Issue What are the vital and essential parts of this undertaking (telecommunications)?

Ratio A federal entity can only claim immunity for provincial statues that effect a vital and

essential part of the undertaking o According to Beetz — the vital & essential parts are the internal management

of the undertaking Labour relations, hours of work, pay levels, health and safety This means that provincial legislation CAN NOT affect the management

of the undertaking internal management is immune from provincial law

Outcome of Bell Canada case = the occupational health and safety standards of health & safety board do not apply to federal entities

Ordon Estates v Grail, 1998Facts

Boating accident involving pleasure boats on a lake in Ontario – NO federal entity. The lakes and boats are entirely contained within the province of Ontario

Recent jurisprudence made it clear Canadian Maritime Law leaves no room for application of provincial statutes.

Plaintiffs (dependants of the deceased) argue provincial statutes should apply to fill gaps that exist in federal maritime negligence law.

Defendant submit that provincial statutes can have no incidental application to any matter within exclusive federal jurisdiction

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Ratio Keep in mind normally the court would look at the effect on the federal entity, but

cannot do this because NO federal entity) IJI applies to all 29 subsections in s.91. Every head of power has an essential and

unassailable core of immunity that provinces are not allowed to regulate

Analysis SCC decided only way to follow recent jurisprudence and avoid applying provincial law

was to create a new test for IJI: immunity applies to every head of federal power Decided Canadian maritime law is essential the core of s.91.10 (navigation & shipping)

Canada Western Bank v Alberta, 2007Facts

In 2000 Alberta enacted changes to the Insurance Act to make federally chartered banks subject to the provincial licensing scheme

o Insurance Act = regulates the Bank’s promotion of insurance Canadian Western Bank did not want to follow this new regulation & brought an

application for a declaration that: sale of insurance products fell under federal head of power 91(15), therefore the Insurance Act was inapplicable to the bank because of IJI or alternatively because of federal paramountcy

Trail judge dismissed CWB’s claim because:o Insurance act under fell provincial head of power 92(13)o Found IJI failed because insurance is not at the core of banking o Federal paramountcy ~ applies bc there is no operational conflict bw the

federal and prov law Ratio:

SCC agrees with TJ

Binnie J held that “in theory, the doctrine is reciprocal. It applies both to protect provincial heads of power and provincial undertakings from federal encroachment and to protect federal heads of power and federal undertaking from provincial encroachment.”

Bold part = huge expansion of IJI doctrine

In an attempt to walk back this expansion, Binnie qualified that courts must determine what the core of a head of power is & that IJI should be restricted to precedents

There is no provincial IJI cases, which means it could be argued that IJI should never apply to provincial heads of powers or works/undertaking beacuse there is no precedent

SCC concerned about the creation of legal vacuums — it could be ruled that one level of govt could not legislate on a matter, BUT what if the other level of govt hasn’t regulated in this area yet? This would leave the matter/area unregulated. The SCC finds it distasteful that an

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area would be left unregulated

Potential outcome of IJI = a centralizing tendency. Every time the SCC says that a federal entity is immune, it means that the provincial legislation no longer applies. This undermines the spirit of federal cooperation and double aspect issues

What SCC says about PARAMOUNTCY: Can be either operational conflict or frustration of purpose Does not find either operational conflict or frustration in this case States that paramountcy is better suited to contemporary Cad constitutionalism than

IJI Can do analysis in any order – can determine validity and then either IJI or

paramountcy

Canada v PHS Community Services, 2011Facts

Insite = a safe injection facility Received exemptions from the application of the criminal law in order to operate

legally In 2008, minister of health fails to extend the exemption. Insite asks the court for a declaration on two alternative grounds: that as a provincial

health facility, Insite was entitled to IJI (straight from Canadian Western Bank) At the BCCA two of the judges found that Insite was a provincial health facility that

was being impaired by the health minister not granting an exemption

Ratio Insite did not get a declaration on the ground of IJI, but it DID get a declaration on the

ground of s 7 rights

Discussion of IJI Every head of power has a core, a basic minimum content

o The court, despite its dislike, is not giving up on the idea of a core Held that the delivery of health care services does not constitutes a protected core of

a provincial head of power because: o The proposed core has never been recognized in the jurisprudence & courts

are reluctant to identify new areas where IJI applies (applying CWB)o The broad and amorphous nature of provincial jurisdiction over health care

makes it impossible to delineate where the federal legislature cannot treado Application of IJI to a protected core of the health care head of power has

potential to create legal vacuums

McLachlin CJ:"In summary, the doctrine of IJI is narrow. Its premise of fixed watertight cores is in tension

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with the evolution of Canadian constitutional interpretation towards the more flexible concepts of double aspect cooperative federalism. To apply it here would disturb settled competencies and introduce uncertainties for new ones. Quite simply, the doctrine is neither necessary nor helpful in the resolution of the contest here between the federal government and the provincial government.”

Marine Services International v Ryan Estates, 2013Facts

Two fishermen killed, estates sought compensation from the parties responsible Newfoundland workers’ compensation legislation (i.e. provincial legislation) bars

actions for negligence Federal Marine Liability Act allows negligence actions for survivors (where the

deceased would have had an action) Ryan Estate wanted to move forward under federal statue, applied that either IJI or

paramountcy applied

IJI: Precedent for this IJI claim = Ordon Estate

o Core of s.91.10 = marine negligence law However, SCC held there was no impairment of maritime negligence law because the

survivors were getting some payments

Paramountcy: SCC against restates the two types of conflict (from CWB) SCC looked at the Federal Maritime Liability Act & found that it was permissible to

bring a negligence action, but it was not mandatory The provincial legislation says that if they pay you benefits, you cannot bring a cause

of action The court finds that the federal purpose of the statue is satisfied by the fact that Ryan

Estate is being compensated for their loss, so there is no conflict.

PARAMOUNTCY CASES

Alberta v Moloney, 2015This case is a debate within the SCC between what constitutes operational conflict vs frustration of purpose. BUT everyone agreed that either type will trigger paramountcy

Facts Moloney caused a car accident while uninsured, had to pay compensation, couldn’t

pay it, went bankrupt Under federal Bankruptcy & Insolvency Act, he is released from all debts, but Alberta

Traffic Safety said they can suspend his license until he pays

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Issue Is there a conflict between Alberta Traffic Safety Act and the Bankruptcy and

Insolvency act?

Ratio Majority & dissent unanimously agreed that there was a conflict & that the federal

statute avails. However, disagreed on whether it was operational conflict or frustration of purpose

o Majority = operational conflict o Dissent = frustration of purpose

Analysis Majority justification for frustration of purpose: Bankruptcy Act says Moloney doesn’t

have to pay fee, but Alberta Traffic Safety says they will suspend license unless fee is paid (both can technically operate, but the purposes are frustrated!)

Edinger inclined to think that McLachlin (dissent) is correct in saying that this is frustration of purpose

Dissent defined operational conflict as express contradiction (i.e. one statute says you can do something, and the other statute says you cannot)

If operational conflict must be express contradiction, this arguably did not happen because Maloney could have complied with both statues so long as he didn’t want to drive

Note: Doesn’t really matter whether it is an operational conflict or frustration of purpose because both constitute a conflict for the purposes of the paramountcy doctrine — if either is found the federal statute will prevail

Rogers Communications v Chateauguay, 2016Facts

Rogers Communications holds a licence which requires it to ensure there is adequate network coverage in its attributed geographic regions

Rogers constructed a new radiocommunication antenna system in the city of Chat. to meet above obligation. This was authorized by the federal minister

City of Chat argued that the health and well-being of its residents would be at risk bc of the antenna — city issued a notice that prohibited construction for 2 years under the Cities and Towns Act and the Expropriation Act

o After the initial notice was about to lapse, it was renewed for an additional two years

Rogers argued this was UV the province & was inapplicable under the doctrine IJI or of inoperative under the doctrine of federal paramountcy

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Issue Is the notice valid?

o SCC decided it was not valid provincial law, but still decided to go through the analysis for the IJI argument

If it is, does the notice apply to Rogers?

P&S analysis of the notice by SCC: Concluded it was clear the notice was meant to prevent Rogers from installing its

radio communications antenna Hled that cooperative federalism cannot be used to distort the P&S because this could

lead to exclusive powers granted to either provincial or federal govt being unduly limited

SCC on IJI: Majority reaffirmed the narrow scope of the doctrine, and its reservations for

situations that are covered by precedent Step 1: Court found precedent — Toronto Corporation v Bell Telephone

o Choosing an appropriate location for infrastructure is considered a core part of the federal power over radiocmmunication

o Edinger thinks that for a precedent to invoke IJI, SCC must have had to considered whether the federal entity was entitled to IJI. The argument could have failed, but the fact that IJI was considered is sufficient to act as a precedent

Step 2: Is there impairment? Majority concluded that the notice seriously and significantly inhibited Rogers’ ability to meet its obligation to serve the geographic area, thereby imparting a vital and essential part of its federal undertaking

o Radiocommunication also a federal head of power — the notice was not only impairing a federal undertaking, but also the core of a federal HoP

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